The following provisions constitute an integral part of the Professional Services PSA (“PSA”) of Alliance Interactive Inc, a Delaware corporation operating in the District of Columbia and are incorporated therein by reference. The capitalized terms contained herein shall have the meaning ascribed to them in the PSA.
A. Consideration, Payment, Finance Charge. Client shall pay Alliance Interactive the amount set forth in the Payment Schedule, on or before the due date for such payment as set forth in the PSA. If no payment schedule is established for Client, then Client shall be billed by Alliance Interactive on a monthly basis with the amount thereof due upon receipt of an invoice by Client. Amounts not paid by the Client within thirty (30) days of the respective payment dates shall bear interest at an annual rate of interest which is equal to ten percent (10%) per annum or two and one‐half percent (2 ½ %) per month. Interest shall accrue commencing on the thirty‐first (31st) day after the applicable payment due date and shall accumulate on the unpaid balance on a daily basis until paid in full. Projects are not considered late or incomplete as a result of missing content from the client.
B. Client’s Responsibilities. Client shall permit Alliance Interactive to have reasonable and timely access to its facilities, systems, data and any other items necessary for providing the Services under the PSA. The Client shall maintain its own backup or duplicate copies of any of its data, software or any third party software furnished to Alliance Interactive for performance of the Services and shall not transfer such materials to Alliance Interactive unless and until it has made such backup or duplicate copies.
C. Recommencement Fee. If, after Alliance Interactive has made at least three (3) attempts, on three (3) separate working days, to communicate with the Client using commercially reasonable means (i.e. telephone, mail or electronic mail), Client fails to respond to Alliance Interactive’ communications causing undue delay in Alliance Interactive’ prompt completion of the Services, as reasonably determined by Alliance Interactive, Client shall reimburse Alliance Interactive for any fees, costs, or expenses, which Alliance Interactive incurs as a result of the recommencement of the project (the “Recommencement Fees”). If Recommencement Fees are incurred, Alliance Interactive shall submit an itemized invoice to the Client for the Recommencement Fees in a timely manner. The Client shall pay Alliance Interactive within thirty (30) days of receiving the invoice for the Recommencement Fees will not exceed 20% of the project fee plus interest charges. Amounts not paid by the Client within thirty (30) days of receiving the invoice shall bear interest at an annual rate of interest which is equal to ten percent (10%) per annum or two and one‐half percent (2 ½ %) per month. Interest shall accrue commencing on the thirty‐first (31st) day after the applicable payment due date and shall accumulate on the unpaid balance on a daily basis until paid in full.
2. Intellectual Property
A. Alliance Interactive Materials. All information and materials, including, without limitation, software provided to Client by Alliance Interactive or otherwise used by Alliance Interactive in connection with the Services that Alliance Interactive developed or acquired prior to the PSA or develops or acquires independently of the PSA (the “Alliance Interactive Materials”) are and shall remain the property of Alliance Interactive or its licensors, who shall retain any and all intellectual property rights therein including, but not limited to, patent, trademark, copyright and trade secret. To the extent that Alliance Interactive Materials include any third‐party software, then Alliance Interactive shall disclose to Client the provider and any applicable restrictions prior to undertaking any Project. The Alliance Interactive Materials shall also include, to the extent so agreed by both parties, any materials identified in writing as the Alliance Interactive Materials in the Proposal, which may consist of materials developed in the course of the Project; however, the Alliance Interactive Materials shall not include any information developed in the performance of this PSA and charged to Client. Such information shall be the property of Client. Except as specifically provided in the PSA, Client obtains no right, title or interest in the Alliance Interactive Materials. All Alliance Interactive Materials shall remain the “Confidential Information” of Alliance Interactive and shall be subject to the confidentiality provisions set forth in Section IV. To the extent the Alliance Interactive Materials are included in any Deliverable, Alliance Interactive hereby grants to Client, and Client hereby accepts, a non‐exclusive, worldwide, fully paid and royalty‐free license to use, maintain, and support the Alliance Interactive Materials for any lawful purposes whatsoever.
B. Client Materials. All information and materials, provided by Client to Alliance Interactive including modifications, changes and derivatives thereto (the “Client Materials”), are and shall remain the property of Client or its licensors, who shall retain any and all intellectual property rights therein including, but not limited to, patent, trademark, copyright and trade secret. Alliance Interactive obtains no right, title or interest therein, except that Alliance Interactive may use the Client Materials for the sole, exclusive and limited purpose of performing the Services or incorporating them into the End‐Product in compliance with the terms and conditions of the PSA. Alliance Interactive shall comply with the terms of any license or other agreement applicable to such Client Material of which it is given notice by Client. All Client Materials shall remain the Confidential Information of Client and shall be subject to the confidentiality provisions of the PSA. Alliance Interactive promptly shall return to Client any and all Client Materials in Alliance Interactive’ possession or control upon Client’s request and, in any event, upon termination of the applicable Project.
C. Mutual Indemnification. Client shall indemnify, defend and hold harmless Alliance Interactive, its stockholders, affiliates, successors, assigns, officers, directors, employees, agents and representatives, from and against any and all actions, suits, proceedings, investigations, demands, claims, judgments, liabilities, obligations, liens, losses and damages and any related fees and expenses (including, without limitation, attorneys’ fees) arising out of or relating to any suit or claim that the Client Materials infringe or misappropriate any third‐party copyright, patent, trademark, trade secret or other intellectual property right. Alliance Interactive shall indemnify, defend and hold harmless Client, its stockholders, affiliates, successors, assigns, officers, directors, employees, agents and representatives, from and against any and all actions, suits, proceedings, investigations, demands, claims, judgments, liabilities, obligations, liens, losses and damages and any related fees and expenses (including, without limitation, attorneys’ fees) arising out of or relating to any suit or claim that the Alliance Interactive Materials infringe or misappropriate any third‐party copyright, patent, trademark, trade secret or other intellectual property right.
Each party hereto acknowledges that during the term of the PSA it may receive certain Confidential Information of the other party. Except as expressly set forth herein, the party receiving the Confidential Information (the “Receiving Party”) agrees that it shall keep confidential and shall not use or disclose (or permit any third party to use or disclose) to any third party any or all Confidential Information of the other party (the “Disclosing Party”) at any time. Receiving Party shall use its best efforts to protect the secrecy of and avoid the disclosure and unauthorized use of the Confidential Information. In preserving the confidence of the Confidential Information, Receiving Party shall use the same standard of care that it would use to secure and safeguard its own Confidential Information, but in no event less than reasonable care. Receiving Party shall, at its own expense: (a) immediately notify Disclosing Party of any unauthorized possession, use or knowledge, or attempt thereof, of the Confidential Information by any third party; (b) promptly furnish to Disclosing Party full details of the unauthorized possession, use or knowledge, or attempt thereof, and use reasonable efforts to assist Disclosing Party in investigating or preventing the recurrence of any unauthorized possession, use or knowledge or attempt thereof, of the Confidential Information; and (c) promptly use all reasonable efforts to prevent a recurrence of any unauthorized possession, use or knowledge of the Confidential Information. “Confidential Information” shall mean (i) any and all proprietary information, formulae, patterns, compilations, technology, software (in source, binary, object code or any other form), firmware, code, hardware, documentation, developments, inventions, lists, trade secrets, technical data, data compilations, processes, programs, devices, designs, drawings, methods, techniques, know‐how, ideas, research, plans (marketing, business, strategic or otherwise), customer information and other business arrangements, pricing and other data, whether in written, digital, oral or other form, and any and all intellectual property rights related thereto (collectively, “Information”) that (A) derives independent economic value, actual or potential, from not being generally known to the public or to any other third party who can obtain economic value from its disclosure or use, and (B) is the subject of efforts by Disclosing Party that are reasonable under the circumstances to maintain its secrecy; (ii) any Information (A) unique to Disclosing Party that has a significant business purpose and is not known or generally available from sources outside of Disclosing Party or typical of industry practice, or (B) the disclosure of which would have a material adverse effect on any of the businesses of Disclosing Party; (iii) any Information, which is designated in writing to be confidential or proprietary, or if given orally, is designated at the time of disclosure as being disclosed as confidential or proprietary, or which could reasonably be considered of a proprietary or confidential nature; or (iv) any Information which is required by law or by Disclosing Party’s internal policies to be kept confidential. Disclosing Party’s failure to mark any Confidential Information as confidential, proprietary or otherwise shall not affect its status as Confidential Information hereunder. It is expressly understood by Receiving Party that the existence of the PSA and entire contents hereof are confidential. Except as expressly set forth herein, Receiving Party agrees: (i) not to use any Confidential Information for any purpose except as otherwise expressly permitted hereunder; (ii) to disclose such Confidential Information only to employees (or third‐party subcontractors permitted under the PSA) who have a need to know such Confidential Information for purposes of the PSA and who are under a duty of confidentiality no less restrictive than that set forth herein. Notwithstanding the foregoing, Confidential Information does not include information that (i) is shown by written record to be in the public domain at the time of disclosure or becomes available thereafter to the public without restriction and not as a result of any act or omission of Receiving Party; or (ii) is approved for disclosure by Disclosing Party’s written authorization. This Section IV shall survive any termination of this PSA for so long as any Confidential Information obtained by a Receiving Party remains Confidential Information.
A. The Client acknowledges that during the course of the Agreement specified hereunder, Alliance Interactive’s Personnel will develop personal relationships with the CLIENT, its owners, employees, and clients, and knowledge of the Client’s business causing the Client to consider hiring Alliance Interactive’s personnel or contracting directly with Alliance Interactive’s Personnel. The Client agrees that it is reasonable and necessary for protection of the goodwill and business of Alliance Interactive that the Client makes the covenants contained herein. During the Restricted Period and the Client shall not, directly or indirectly, hire, solicit any employee or agent of Alliance Interactive away from Alliance Interactive or encourages any such employee or agent to leave such employment. As used in this Section 24(a), the term “Restricted Period” means the period beginning on the commencement date of the original term and ending on the date which is the later of two (2) years after the end of the term or one (1) year after the personnel’s employment with Alliance Interactive terminates for any reason.
B. Alliance Interactive acknowledges that during the course of the Agreement specified hereunder, Client’s Personnel will develop personal relationships with Alliance Interactive, its owners, employees, and clients, and knowledge of Alliance Interactive’s business causing Alliance Interactive to consider hiring Client’s personnel or contracting directly with Client’s Personnel. Alliance Interactive agrees that it is reasonable and necessary for protection of the goodwill and business of Client that the Alliance Interactive makes the covenants contained herein. During the Restricted Period Alliance Interactive shall not, directly or indirectly, hire, solicit any employee or agent of Client away from Client or encourages any such employee or agent to leave such employment. As used in this Section 24(a), the term “Restricted Period” means the period beginning on the commencement date of the original term and ending on the date which is the later of two (2) years after the end of the term or one (1) year after the personnel’s employment with Client terminates for any reason.C. REMEDIES. If either party commits a breach the precise monetary amount of the aggrieved party’s economic damages will be difficult to prove with reasonable certainty. The
C. REMEDIES. If either party commits a breach the precise monetary amount of the aggrieved party’s economic damages will be difficult to prove with reasonable certainty. The parties therefore agree that the aggrieved party shall have the right to assert liquidated damages against the breaching party equal to one hundred fifty (150%) percent of the replacement employee, plus costs of enforcement, including reasonable attorneys fees. It is acknowledged that any such breach will cause irreparable injury to the aggrieved party and it is agreed that preliminary and permanent injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions. In addition, the aggrieved party may take all such other actions and remedies available to it under law in equity and shall be entitled to such damages as it can show it has sustained by reason of such breach.
D. REASONABLENESS. Both parties acknowledge that the type and periods of restriction imposed above in Section III and the liquidated damages provision in Section III above, are fair and reasonable and are reasonably required for the protection of Alliance Interactive. If any of the covenants in (a) or (b) above, or a part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid portions. If any of the covenants contained in (a) or (b), or any part thereof, is held to be unenforceable because of the duration of such provision, the parties agree that the court making such determination shall have the power to reduce the duration and, in its reduced form, said provision shall then be enforceable.
5. Warranties and Covenants.
A. Industry Standards. Alliance Interactive warrants that the Services shall be performed in a timely, professional and workmanlike manner and consistent with or exceeding generally accepted industry practices and procedures.
B. Compliance with Laws. Alliance Interactive warrants that its performance hereunder shall not violate any applicable law, rule or regulation, and that Alliance Interactive has obtained all licenses, permits, approvals and consents required to comply with such laws, rules and regulations.
C. Ownership and Non‐infringement. Alliance Interactive warrants that (a) it shall perform the Services, including creating the End‐Product, without infringement or violation of the intellectual property rights of Client or any third party; (b) Alliance Interactive is the lawful owner or licensee of all Alliance Interactive Materials, and other materials, other than Client Materials, which form any the End‐Product, or a portion thereof, or which are otherwise used in the performance of the Services; and (c) Alliance Interactive has all rights necessary to grant Client the rights set forth in this PSA, without violation or infringement of the intellectual property rights of any third party. Client warrants that it is the lawful owner or licensee of all Client Materials, and other materials, other than Alliance Interactive Materials which form any the End‐Product, or a portion thereof, and Client has all rights necessary to grant Alliance Interactive the right to use the Client Materials hereunder, without violation or infringement of the Intellectual Property Rights of any third party.
D. Client warrants that it is not a minor, that it has proper legal capacity to contract, that it has the intent to form a contract with Alliance Interactive pursuant to the terms herein, and that it agrees to be bound by all of the terms and conditions set forth in the PSA.
E. Client covenants and agrees to be responsible for its Internet service provider fees, telecommunication and other charges that may apply as a result of its use of the End‐Product;
F. Client covenants and agrees that its use of the End‐Product will be only for legitimate and legal purposes and that any and all liability that is incurred as a result of any illegitimate or illegal use of this End‐Product by it is borne Solely by it;
G. That the Client’s representative executing the PSA has full authority to bind Client to the terms of the PSA;
H. Client covenants and agrees that all risk of damage and any and all actual damage, if any, to the End‐Product or the Computers on which the End‐Product is used during the End‐Product’s use is assumed by it.
I. Except to the extent that Alliance Interactive has breached this Agreement or negligently performed the services hereunder, Client agrees to indemnify and hold Alliance Interactive harmless from and against any and all costs, liabilities, claims, or demands (including reasonable attorney’s fees and expenses of any kind whatsoever) that arise or result from its use, reproduction or distribution of the End‐Product.
J. Client covenants and agrees that in its use of the End‐Product, it will not disparage, tarnish, or blur Alliance Interactive’s trademarks or other intellectual property rights in any way.
K. Client covenants and agrees that it will not remove, obscure, make illegible or alter any notices or indications of Alliance Interactive’ rights, including, but not limited to, its intellectual property rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any materials.
Disclaimer. EXCEPT AS OTHERWISE SET FORTH IN THE AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.
L. Client covenants and agrees that Alliance Interactive can show off all work, and has the right to display all aspects of our creative work, including sketches, work-in-progress designs and the completed project on our portfolio and in articles on websites, in magazine articles and in books.
6. Mutual Indemnification
Client shall indemnify, defend, and hold Alliance Interactive and its parents and affiliates and their respective officers, directors, shareholders, employees, agents and contractors harmless against and from any and all third party claims, actions, suits and/or proceeding which arises in any way from: (a) any breach or alleged breach of any representation, warranty or covenant of Client contained in the PSA or (b) the Client Materials or any other text, pictures, sound, graphics, video and other data and other materials provided by Client. Client shall indemnify, defend and hold harmless Alliance Interactive for all losses, damages, liabilities and all reasonable expenses (including, without limitation, attorneys’ fees and expert fees) and costs incurred by Alliance Interactive as a result of defense of any claim, action, suit or proceeding described herein, and any final judgment entered against Alliance Interactive in any such claim, action, suit or proceeding. Alliance Interactive shall indemnify, defend, and hold Client and its parents and affiliates and their respective officers, directors, shareholders, employees, agents and contractors harmless against and from any and all third party claims, actions, suits and/or proceeding which arises in any way from (a) any breach or alleged breach of any representation, warranty or covenant of Alliance Interactive contained in the PSA or (b) the Alliance Interactive Materials or any other text, pictures, sound, graphics, video and other data and other materials provided by Alliance Interactive. Alliance Interactive shall indemnify, defend, and hold harmless Client for all losses, damages, liabilities and all reasonable expenses (including, without limitation, attorneys’ fees and expert fees) and costs incurred by Client as a result of defense of any claim, action, suit or proceeding described herein, and any final judgment entered against Client in any such claim, action, suit or proceeding. Each party’s obligation to defend, indemnify and hold harmless the other party hereunder shall be mitigated and reduced to the extent that such party has been prejudiced by a failure of the indemnified party to provide prompt notice of any and all such claims to the indemnifying party or to provide reasonable cooperation in the defense and/or settlement of such claims. VIII.
A. Termination for Breach. Except as otherwise set forth herein, the PSA may be terminated at any time, by either party, if the other party breaches any provision of the PSA. The party desiring to cancel shall give the breaching party written notice stating the nature and character of the breach and allow the breaching party ten (10) calendar days from the date of the notice to correct the breach (other than for failure to timely make any payment hereunder). If the breach has not been corrected within the ten (10) day notice period, the non‐breaching party shall notify the breaching party in writing as to whether it wishes to terminate the PSA.
B. Termination for Non‐Payment. Upon non‐payment of obligations by the Client, Alliance Interactive may terminate this PSA by giving Client written notice of the failure to timely make any payment and allow the Client five (10) days to make such payment(s). If the amount due remains unpaid after the five (10) day notice period, Alliance Interactive may terminate this PSA immediately the amount then due under this PSA for services rendered shall continue to be due and shall accrue interest as set forth herein.
C. Cross‐Breach. Any uncured breach, including failure to timely make payments, by the Client of any other agreement between Alliance Interactive and the Client shall be considered a breach hereunder and entitle Alliance Interactive to terminate this PSA.
D. Surviving Provisions. Should this PSA be terminated by either party, the provisions of Section IV, VI and VIII contained in these Basic Terms shall survive termination of the PSA.
E. Termination Obligations. Upon the termination, cancellation or expiration of this PSA: (a) any unpaid fees owed by Client for services rendered hereunder immediately shall be due and payable; (b) if applicable, any advance payments made by Client shall first be applied to amounts then due and owing to Alliance Interactive under any other agreements between the parties and the balance, if any, shall then be returned to the Client; and (c) each party immediately shall return to the other any Confidential Information or any other property belonging to the other that is in its possession or control, subject to any rights in such property that may exist under the PSA.
F. Alliance Interactive Termination Right. We can terminate this Agreement if one or more of the following events occur: (i) If payment has not been received within fifteen (15) business days after the due date. (ii) If the Client declares bankruptcy due to insolvency, a receiver is appointed for all or part of your operations, or you declare that you have dissolved as an entity, we will have the right to terminate Cloud Services as of noon of the fifth business day following the date of the announcement of bankruptcy, receivership, or dissolution. We reserve the right to offer modified terms at our discretion during these periods. (iii) If the Client does not take expeditious action to correct any inappropriate use of our services or Alliance Interactive’s Intellectual Property Alliance Interactive shall have the right to take all appropriate measures including immediate termination of the Agreement. Alliance Interactive shall hold you responsible for the payment of any judgments against us as a result of uncorrected conditions, including any reasonable attorney’s fees incurred as a result of your unlawful use of our services, our vendor’s software, or Alliance Interactive’s Intellectual Property or confidential information.
8. LIMITATION OF LIABILITY. THE CUMULATIVE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THE AGREEMENT OR THE DELIVERABLE(S), WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THREE TIMES THE TOTAL AMOUNT OF ALL FEES (PLUS LEGAL COSTS) PAID BY CLIENT TO ALLIANCE INTERACTIVE PRIOR TO THE DATE UPON WHICH ANY SUCH LIABILITY ARISES. CLIENT MAY NOT BRING AN ACTION OR SUIT AGAINST THE OTHER PARTY AFTER THE FIRST ANNIVERSARY DATE FOLLOWING THE DATE UPON WHICH LIABILITY ARISES HEREUNDER. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, COSTS OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY, COST OF CAPITAL, LOSS OF GOODWILL, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE INVALID, VOID OR UNENFORCEABLE.
9. Law and Disputes.
The PSA shall be governed by the laws of the District of Columbia, without regard to any provision of District of Columbia law that would require or permit the application of the substantive law of any other jurisdiction. Venue shall lie in the courts of the District of Columbia. Alliance Interactive and the Client shall endeavor to resolve any dispute, in an amicable and professional manner by negotiations between the parties. If the dispute cannot be resolved through mutual negotiation and the amount in dispute falls within the exclusive jurisdiction of District of Columbia Courts, either party may refer the dispute for final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect as of the date first written above. Notwithstanding the provisions above, in the event of an actual or alleged violation of such party’s Confidential Information or any other intellectual property rights, the parties reserve all rights to seek immediate judicial remedies and relief, including, without limitation, any injunctive relief that may be granted by any court of competent jurisdiction.
A. Notices. All notices under this PSA shall be in writing, and shall be deemed given when personally delivered, or three days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth in the PSA or such other address as such party last provided to the other by written notice.
B. Assignment. Neither party may assign or otherwise transfer the PSA or any of the rights that it grants without the prior written consent of the other party. Any purported assignment in violation of the preceding sentence shall be void and of no effect.
C. Integration Amendment. The PSA (including these Basic Terms) constitutes the entire agreement between the parties, and supersedes all other prior or contemporaneous communications between the parties (whether written or oral) relating to the subject matter of the PSA. The PSA may be modified or amended solely in a writing signed by both parties.
D. Severability. The provisions of the PSA shall be deemed severable. In the event that any provision of the PSA shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the PSA shall otherwise remain in full force and effect and enforceable. The PSA includes the Basic Terms by reference.
E. No Partnership or Agency. The parties expressly agree that Alliance Interactive shall be an independent contractor for all purposes in the performance of the PSA and shall not be an employee, partner or agent of the Client.
F. No Waiver. No failure or delay by either party in exercising any right, power or remedy shall operate as a waiver of such right, power or remedy, and no waiver shall be effective unless it is in writing and signed by the waiving party.